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2023 MarsdenLR 155
HIGH COURT MALAYA SHAH ALAM
CHRISTINE LIM CHOY WAN – Appellant
Versus
JABATAN PEGUAM NEGARA & ANOR – Respondent
[Judicial Review Application No: BA-25-69-10/2022]
The court affirmed that the Attorney General's discretion in prosecutorial decisions is largely beyond judicial review, requiring compelling evidence for challenges to such decisions.
Headnote:(A) Judicial Review - Federal Constitution - Article 145(3) - The applicant sought leave to commence judicial review against the Attorney General's decision to discharge a suspect not amounting to acquittal (DNAA). The court held that the applicant failed to provide compelling prima facie evidence to challenge the prosecutorial discretion of the Attorney General. The decision to uphold the DNAA was deemed reasonable. (Paras 17, 20, 29, 31, 33)
(B) Judicial Review - Test for Leave - The test for granting leave requires that the application is not frivolous, vexatious, or misconceived, and that there is an arguable case for the relief sought. (Paras 12, 15, 24)
Facts of the case:
The applicant alleged physical assault by her brother and sought judicial review of the Attorney General's decision to discharge him not amounting to acquittal. The applicant's claims were based on a police report, interim protection order, and medical report.
Findings of Court:
The court found that the applicant did not provide sufficient evidence to challenge the DNAA decision.
Issues: The main issues were whether the applicant had an arguable case and whether the Attorney General's decision was amenable to judicial review.
Ratio Decidendi: The court ruled that the Attorney General's discretion under Article 145(3) is largely beyond judicial scrutiny, and the applicant must present compelling evidence to challenge such decisions.
Result: Application for leave dismissed.
| Table of Content |
|---|
| 1. application for judicial review details. (Para 1 , 2) |
| 2. factual background of the case. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 3. criteria for granting leave for judicial review. (Para 12 , 13 , 14 , 15) |
| 4. objection by the attorney general. (Para 16 , 17 , 18) |
| 5. attorney general's discretion in prosecutions. (Para 19 , 20 , 21 , 22) |
| 6. insufficient evidence to challenge prosecutorial powers. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32) |
Introduction
[1] This is an application seeking leave to commence judicial review proceedings by the applicant, Christine Lim Choy Wan challenging the decisions of the respondents dated 8 July 2022 and 12 August 2022 ("the Impugned Decisions").
Reliefs Sought
[2] In this application, the applicant sought the following reliefs:
(a) declaration that the respondents' decision dated 8 July 2022 and 12 August 2022 ("the Impugned Decisions") for Discharge Not Amounting to Acquittal ("DNAA") of the suspect, Lim Kam Cheen Peter ("the Suspect") in Police Report No. Klang Selatan 8744/19 ("the Police Report") is unreasonable, unsound (tidak waras) and invalid (tidak sahih);
(b) Certiorari to quash the Impugned Decisions; and
(c) Mandamus to compel the respondents to institute criminal proceedings against the suspect for the Police Report.
Factual Background
[3] The facts of this instant application are as derived from the documents filed by parties are as follows.
[4] The applicant lodged a Police Report on 17 March 2019, outlining the following grievances:
(i) The applicant had a dispute with her mother on the same day and claimed that her mother physically assaulted her.
(ii) The suspect, who happens to be the applicant's younger brother, then confronted the applicant and attempted to record the altercation.
(iii) In response, the applicant acknowledged in her affidavit in support that she pushed the suspect's mobile phone away when he tried to record the incident. In retaliation, the suspect allegedly lifted the applicant, threw her to the ground, and proceeded to physically assault her by punching and kicking her.
(iv) Consequently, the applicant asserted that she sustained significant injuries to her ribs, eyes, legs, and head and had to seek medical treatment at Klang Hospital. She remained hospitalized until 22 March 2019.
[5] The applicant then obtained an Interim Protection Order against the suspect from the Klang Magistrate's Court dated 17 April 2019 ("Interim Protection Order") in which, among other, states:
"Perintah perlindungan interim ini hendaklah terhenti berkuat kuasa:
(a) apabila orang dilindungi itu dimaklumkan secara bertulis oleh Pegawai polis tentang penyiasatan yang telah selesai dan bahawa tiada tindakan selanjutnya akan diambil terhadap orang yang terhadapnya perintah ini dibuat;
(b) apabila prosiding jenayah dimulakan terhadap orang yang terhadapnya perintah ini dibuat jika, apabila dimaklumkan secara bertulis oleh pegawai polis bahawa prosiding jenayah yang berhubungan dengan perlakuan suatu kesalahan yang melibatkan keganasan rumah tangga akan dimulakan terhadap orang yang terhadapnya perintah ini dibuat, tiada permohonan bagi perintah perlindungan dibuat oleh orang dilindungi itu dalam masa tujuh hari selepas dimaklumkan sedemikian;...."
[6] The applicant sent an email on 18 April 2022, to the second respondent, making reference to her prior email from 28 January 2021. In the email dated 28 January 2021, the applicant conveyed the following information:
(i) On 31 July 2019, the investigation officer informed her that the suspect would be charged in Klang Session Court on 2 August 2019.
(ii) However, on 25 August 2020, the Deputy Public Prosecutor informed her that the suspect was discharged not amounting to an acquittal (DNAA) from the charges under s 325 or 326 of the Penal Code by the Klang Session Courts' judge, Dato' Ahmad Zamzani bin Haji Mohd Zain, due to the nonattendance of witnesses during the criminal proceedings.
[7] In response to this, th
